State ex rel. Johnson v. Rawac Plating Co.

Alice Robie Resnick, J.,

dissenting. I must respectfully dissent from the majority opinion. The majority’s reliance on State, ex rel. Nye, v. Indus. Comm. (1986), 22 Ohio St.3d 75, 22 OBR 91, 488 N.E.2d 867, is misplaced. The scenario set forth in Nye did not occur in this case. In this case appellee here was employed at two jobs: a full-time job at Rawac Plating Company and part-time at Upper Valley Cinema (UVC). When appellee returned to his part-time job he did not indicate that he was abandoning an intention of returning to his former full-time job at Rawac Plating Company, where he was injured. Indeed, at the time appellee returned to light duty work, his attending physician continued to certify that appellee was not able to return to his former position at Rawac.

The purpose of temporary total disability compensation is to compensate the injured worker for loss of earnings. State, ex rel. Bunch, v. Indus. Comm. *602(1980), 62 Ohio St.2d 423, 427, 16 O.O.3d 449, 451, 406 N.E.2d 815, 818. Appellee was unable to return to his duties at Rawac. He should not be penalized for attempting to perform some type of limited gainful employment. In State, ex rel. Ramirez, v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586, this court set forth the criteria for determining when temporary total compensation benefits should cease. I do not believe that when we stated, “ * * * [the claimant] has returned to work,” we meant the situation which is presented to us today. Rather, “return to work” means return to full-time employment.

Appellee still experienced a loss of earnings from Rawac even after he returned to part-time work at UVC. To deny appellee temporary total disability compensation upon the basis that he has returned to his former part-time employment flies in the face of the purpose of temporary total disability benefits. I would find that the Industrial Commission abused its discretion, as the court of appeals did, and permit appellee to receive temporary total disability benefits from February 25, 1986 through February 26, 1987. Accordingly, I would affirm the decision of the appellate court.

Douglas, J., concurs in the foregoing dissenting opinion.